Citation Nr: 0114445
Decision Date: 05/23/01 Archive Date: 05/30/01
DOCKET NO. 93-02 183A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to dependency and indemnity compensation
pursuant to 38 U.S.C.A. § 1151.
2. Entitlement to dependency and indemnity compensation
based on service connection for the cause of the veteran's
death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant, F.M. and T.S.
ATTORNEY FOR THE BOARD
Stephen L. Higgs, Counsel
INTRODUCTION
The veteran served on active duty from September 1940 to
October 1945.
The appellant is the veteran's surviving spouse.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a rating decision dated in September 1992 by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania.
This case was the subject of a March 2001 hearing before the
undersigned Board member.
FINDINGS OF FACT
1. The evidence is in equipoise as to whether VA care during
the veteran's terminal period of VA hospitalization caused or
substantially contributed to his death.
2. The appellant has abandoned her claim for service
connection for the cause of the veteran's death, declining at
her March 2001 Board hearing to proffer any evidence or
argument in support of the claim, or demonstrate any
intention to pursue the claim. At this point in time, she
alleges no specific error of fact or law in the denial of
service connection for the cause of the veteran's death.
CONCLUSIONS OF LAW
1. The criteria for the award of dependency and indemnity
compensation for the cause of the veteran's death as if it
were service connected have been met. 38 U.S.C.A. § 1151
(West 1991); 38 C.F.R. §§ 3.102, 3.358 (1996).
2. The appeal for service connection for the cause of the
veteran's death is dismissed. 38 C.F.R. § 20.202 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Background
The appellant maintains that the veteran's death was the
result of VA treatment and hospitalization, based on multiple
theories. One such theory is that VA care during the
veteran's terminal period of VA hospitalization in June 1992
caused or substantially contributed to the veteran's death.
The veteran's death certificate shows that in June 1992 he
died of chronic congestive heart favor with onset 6 months
prior to death, renal failure with onset 1 year prior to
death, and peripheral vascular disease with an onset of years
prior to death. Insulin dependent diabetes was listed as an
other significant condition.
The appellant also has contended that the cause of the
veteran's death is related to disability incurred or
aggravated during service, but, as will be discussed below,
has abandoned this contention.
The case file consists of 4 claims files, the theories of
entitlement are many, and the medical evidence is voluminous.
Analysis
Timeliness of Appeals
38 C.F.R. § 20.302 sets forth the time limits for filing a
notice of disagreement, substantive appeal, and response to a
supplemental statement of the case. Except in the case of
simultaneously contested claims, a claimant, or his or her
representative, must file a notice of disagreement with a
determination by the agency of original jurisdiction within
one year from the date that that agency mails notice of the
determination to him or her. Otherwise, that determination
will become final.
Except in the case of simultaneously contested claims, a
substantive appeal must be filed within 60 days from the date
that the agency of original jurisdiction mails the statement
of the case to the appellant, or within the remainder of the
1-year period from the date of mailing of the notification of
the determination being appealed, whichever period ends
later. 38 C.F.R. § 20.302 (2000).
In August 1992, the appellant submitted a claim for service
connection for the cause of the veteran's death "due to
service and/or treatment at VAMC Wilkes Barre."
In September 1992, the RO denied the claim for service
connection for the cause of the veteran's death, on the
ground that a review of the veteran's extensive record did
not show that any of the conditions listed on the death
certificate were incurred in or aggravated by service or
became manifest to a compensable degree within one year of
discharge from service.
In October 1992, the appellant submitted a notice of
disagreement with the September 1992 rating decision. Her
contention was that VA treatment rendered on more than one
occasion constituted malpractice and contributed to the
veteran's death.
In October 1992, the RO issued a statement of the case, in
response to the appellant's notice of disagreement, on the
issue of service connection for the cause of the veteran's
death, for essentially the same reasons and bases described
in its September 1992 rating decision.
In January 1993, the RO received from the appellant a VA
Form 1-9 for "[b]enefits, service connected pension, due to
carelessness, negligence, malpractice, etc."
In March 1993, the appellant's representative submitted a VA
Form 1-646 on her behalf, repeating the appellant's claim for
"service connection for cause of death that was due to the
treatment at the VA Medical Center in Wilkes-Barre, Pa."
In April 1993, the representative further pressed the
appellant's claim, asserting that the appellant "wishes to
appeal the decision which denied service connection for cause
of death under the auspices of an 1151 claim."
In July 1993, the RO informed the appellant that they could
not take immediate action on her claim that treatment at a VA
facility caused the veteran's death in June 1992, due to a
recent Court of Veterans Appeals decision which invalidated a
portion of the regulation which the Department of Veterans
Affairs used in deciding claims under 38 U.S.C. § 1151.
From the date of submission of her claim in September 1992
forward the appellant was clear that her contentions included
that she was entitled to VA compensation benefits because
inadequacies in VA care caused or contributed to the
veteran's death. Moreover, this is the sole theory pursued
in her timely September 1992 notice of disagreement, in her
timely January 1993 VA Form 9, and in her representative's
March 1993 VA Form 1-646. Not until July 1993 was the
appellant informed that "no immediate action" could be
taken on this aspect of her claim. By this time, the
appellant had perfected her appeal, solely, particularly and
explicitly on the theory that VA treatment constituted
malpractice or maltreatment and contributed to her husband's
death. The Board will not deny appellate status on the issue
of entitlement to dependency and indemnity compensation
pursuant to 38 U.S.C.A. § 1151 based solely on VA's
nonresponsiveness in its September 1992 rating decision and
October 1992 statement of the case to her specific and clear
contentions giving rise to an appeal on this, and only this,
theory of the case.
The fact that, after the appellant's prompting in July 1998,
the RO issued a more on-point denial of the 38 U.S.C.A.
§ 1151 claim in January 1999 is of little procedural
consequence. The appeal, already perfected, was being
pursued very aggressively both before and after this rating
decision.
Indeed, were it not for a statement submitted on the
appellant's behalf in August 2000, within 60 days of issuance
of a June 2000 "supplemental statement of the case" on the
issue of service connection for the cause of the veteran's
death, the question of whether there existed a perfected
appeal on the issue of entitlement to service connection for
the cause of the veteran's death would be highly problematic,
since the pleadings that served to initiate and perfect her
appeal in 1992 pertained solely to her contentions pursuant
to 38 U.S.C.A. § 1151. In sum, the appellant clearly filed a
claim for compensation benefits under 38 U.S.C.A. § 1151 for
the cause of the veteran's death and took every conceivable
step within her power to seek appellate review of the claim.
The RO has adjudicated the claim, although it failed to fully
honor the appellant's pursuit of appellate review.
Therefore, the Board finds it has jurisdiction of the claim,
and that, in any event, the Board's disposition of the claim
is not prejudicial to the claimant.
Service Connection for Cause of the Veteran's Death
To establish service connection for the cause of the
veteran's death, the evidence must show that disability
incurred in or aggravated by service either caused or
contributed substantially or materially to the cause of
death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312
(2000). For a service connected disability to be the cause
of death, it must singly or with some other condition be the
immediate or underlying cause, or be etiologically related.
For a service connected disability to constitute a
contributory cause, it is not sufficient to show that it
casually shared in producing death, but it must be shown that
there was a causal connection. Id.
During the March 2001 Board hearing, the appellant's
representative acknowledged the absence of any currently
advanced argument or evidence with respect to the theory that
there was disability incurred or aggravated in service that
caused or contributed to the cause of the veteran's death.
The Board acknowledges that the appellant had in the past
attempted to make contentions along these lines, but accepts
the statements of the appellant's representative at the
hearing, made in the presence of the appellant, another
person responsible for advancing her claims, and the
undersigned, at face value. Based on the undersigned's
review of the record, the representative's judgments in this
regard are sound. There simply is no tenable claim for
service connection for the cause of death on this record, and
the pursuit of such a claim would only expend adjudicatory
resources needlessly with no prospect for any benefit flowing
to the claimant. In essence, the appellant abandoned her
claim for service connection for the cause of the veteran's
death at her March 2001 Board hearing. Absent any currently
advanced evidence or argument, there is no reasonable course
of action to take in further developing the claim.
The Board may dismiss any appeal which fails to allege
specific error of fact or law in the determination being
appealed. 38 C.F.R. § 20.202 (2000). As there are no
current specific allegations of fact or law with respect to
the claim for service connection for the cause of the
veteran's death, the appeal is dismissed.
In any event, the appellant will be receiving dependency and
indemnity compensation pursuant to 38 U.S.C.A. § 1151 as
though the cause of the veteran's death were service-
connected.
38 U.S.C.A. § 1151 Claim
While the appellant and her representative abandoned the
claim for service connection for the cause of death, they
quite properly and shrewdly advanced a claim for compensation
benefits for the cause of the veteran's death under the
provisions of 38 U.S.C.A. § 1151. This law provides that
where any veteran shall have suffered an injury, or
aggravation of an injury, as the result of hospitalization,
medical or surgical treatment, not the result of the
veteran's own willful misconduct, and such injury or
aggravation results in additional disability or death,
disability compensation or dependency and indemnity
compensation shall be awarded in the same manner as if such
disability or aggravation were service connected.
In determining that additional disability exists, the
beneficiary's physical condition immediately prior to the
disease or injury on which the claim for compensation is
based will be compared with the subsequent physical condition
resulting from the disease or injury. As applied to medical
or surgical treatment, the physical condition prior to the
disease or injury will be the condition that the specific
medical or surgical treatment was designed to relieve.
Compensation will not be payable for the continuance or
natural progress of disease or injuries for which the
hospitalization, etc., was authorized. In determining
whether such existing disease or injury suffered as a result
of hospitalization, medical or surgical treatment is
compensable, it will be necessary to show that the additional
disability is actually the result of such disease or injury
or an aggravation of an existing disease or injury and not
merely coincidental therewith. Compensation is not payable
for the necessary consequences of medical or surgical
treatment or examination properly administered with the
express or implied consent of the veteran. "Necessary
consequences" are those which are certain to result from, or
were intended to result from, the examination or medical or
surgical treatment administered. 38 C.F.R. § 3.358(b),(c).
The appellant is not required to show fault or negligence in
medical treatment. Brown v. Gardner, 513 U.S. 115 (1994).
In Gardner v. Derwinski, 1 Vet. App. 584 (1991), the Court of
Veterans Appeals for Veterans Claims (COVC) invalidated 38
C.F.R. § 3.358(c)(3), on the grounds that the element of
fault required by the regulatory provision was beyond the
scope of the authorizing statute, 38 U.S.C.A. § 1151
(formerly § 351). In December 1994, the Supreme Court
affirmed the lower courts' decisions in Brown v. Gardner, 513
U.S. 115 (1994), and 38 C.F.R. § 3.358(c)(3) was subsequently
amended to conform with the Supreme Court's decision. The
revised regulations, issued in March 1995, did not require
negligence on the part of the VA for the veteran to prevail.
(Although the statute was amended, effective in October 1997,
to require negligence on the part of the VA, the veteran's
case is not affected by that amendment. See 38 U.S.C.A. §
1151 (West 1991 & Supp. 1997).) The amendments were made
effective retroactive to November 25, 1991, the date of the
original Gardner decision. Thus, they apply to the
appellant's August 1992 claim in this case.
The Board finds as determinative in this case an August 1996
confidential report from a physician who is a Geriatrics
Fellowship Director at a major university. The report was
obviously prepared for review by an attorney in contemplation
of litigation (rather than for use as evidence), and makes
strong points both for and against a claim of negligence
during the veteran's terminal period of VA hospitalization.
The six-page report is polished, balanced and factually
unimpeachable, and reflects a consummate level of expertise
on the part of the reviewing physician. The report
translates many medical terms and notations into terms more
susceptible to lay understanding.
The conclusion of the report, based on a very careful and
detailed analysis, is that there is evidence of at least two
potential medical treatment problems, but that it is somewhat
hard to come to a firm conclusion as to whether the veteran's
care in the Wilkes-Barre VA was negligent or not, because of
missing records, and the poor documentation of the veteran's
problems that was available.
In the reviewing physician's view, the veteran's diagnosed
urinary tract infection and renal failure were not
appropriately evaluated and discussed in the chart. The
renal failure could have been due at least in part to
insufficient fluid intake that might have been avoided if
noticed sooner. (As an illustration of the reviewing
physician's attention to detail, earlier in the report, he
noted that the intake/output sheets showed inadequate fluid
intake, 1100-1500 cc's, from June 11 to June 17, and even as
low as 360 cc all day on June 19 and June 20.) He opined
that it was odd, and surely not up to standard of care that
in a patient admitted with a provisional diagnosis of urinary
tract infection, there was no urine culture report and no
further discussion of the diagnosis. He noted that a urine
culture seemed to have been ordered, but he could not tell
whether it was not done or simply missing from the records
copied. He noted that without an autopsy it was further
difficult to really know exactly why the veteran died. (This
is corroborated by a December 1998 letter from the Chief
Executive Officer of the Wilkes-Barre VAMC, in which he
summarizes findings of a clearly inferior [in the Board's
view] 1994 Peer Review report, completed at the time of
filing of a 1994 tort claim, that "[a]s Mrs. [redacted] did not
consent to an autopsy, the exact cause of death was
uncertain." The CEO's letter notes that the Peer Review
report concluded that "there were no quality of care issues
identified in treatment provided at this Medical Center.")
On the other hand, the reviewing physician opined, it must be
stressed that the veteran had several serious underlying
illnesses, any of which could have been ultimately fatal even
with appropriate treatment. The urine may really have been
negative, the renal failure was not all that severe, and
patients with underlying congestive heart failure can have
fatal arrhythmias at any time. The reviewing physician's
final concluding statement was "[t]hus you might be able to
make a case for negligent deviation from common accepted
standards of medical care and documentation."
By this last statement, the Board infers that the reviewing
physician concluded that though the case was a close one, the
attorney and client had a reasonable chance of proving by a
preponderance of the evidence that the veteran died in part
as a result of negligent care during the June 1992 VA
hospitalization. The standard of proof in the present case
is far lower. The appellant need only show by an approximate
balance of the negative and positive evidence that the
veteran's treatment unnecessarily caused or substantially
contributed to (regardless of whether or not it was
negligent) the veteran's death.
It is the defined and consistently applied policy of the
Department of Veterans Affairs to administer the law under a
broad interpretation, consistent, however, with the facts
shown in every case. When, after careful consideration of
all procurable and assembled data, a reasonable doubt arises
regarding service origin, the degree of disability, or any
other point, such doubt will be resolved in favor of the
claimant. By reasonable doubt is meant one that exists
because of an approximate balance of positive and negative
evidence that does not satisfactorily prove or disprove the
claim. It is a substantial doubt and one within the range of
probability as distinguished from pure speculation or remote
possibility. 38 C.F.R. § 3.102 (2000).
This is not a case where definitive proof either for or
against the claim is even theoretically possible. As the
precise cause of death is simply not known, and never will be
known, a linear, conclusive, logical progression of reasoning
is not possible. Thus, the Board must weigh the evidence and
circumstances in a more sophisticated manner. In the Board's
view, the evidence concerning alleged deficiencies in any
earlier period of VA care, including the amputation, is
highly tenuous and need not be further addressed. On the
other hand, the August 1996 physician's report discussed
above demonstrates that there were substantial deficiencies
(whether or not they amounted to negligence) in the terminal
care of a very frail patient. The question at hand becomes
whether these deficiencies caused or contributed to the
veteran's death. Obviously, the VA treatment at issue was
not intended to result in death, and thus does not fall into
the "necessary consequence" exception to entitlement. The
August 1996 report's presentation of possible opposing
arguments bolsters its credibility and weight. The report
evokes a strong impression that were it not for deficiencies
in treatment (even if stopping short of negligence) at the
Wilkes-Barre VAMC in June 1992, it is quite possible that the
veteran would not have died at that time. There is, in sum,
an approximate balance of evidence that does not
satisfactorily prove or disprove the claim. There is a very
substantial and inescapable doubt in favor of the appellant's
claim, easily within the range of probability, and far
removed from pure speculation or remote possibility. 38
C.F.R. § 3.102 (2000).
In light of the foregoing, entitlement to dependency and
indemnity compensation pursuant to 38 U.S.C.A. § 1151 is
granted.
Recently enacted legislation, the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000),
contains extensive provisions modifying the adjudication of
all pending claims. Karnas v. Derwinski, 1 Vet. App. 308
(1991). The new law revises the former § 5107(a) of title 38
United States Code to eliminate the requirement that a
claimant come forward first with evidence to well ground a
claim before the Secretary is obligated to assist the
claimant in the developing the facts pertinent to the claim,
and substantially heightens VA's notice requirements in
adjudication of claims. In the present case, however, the
appellant abandoned her claim for service connection for the
cause of the veteran's death at her March 2001 Board hearing
(as discussed above), and the benefits she seeks are in any
event granted herein pursuant to 38 U.S.C.A. § 1151.
Accordingly, the Board's omission of consideration of the
VCAA in this decision is without prejudice to her claims.
Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993).
ORDER
The appeal for dependency and indemnity compensation based on
service connection for the cause of the veteran's death is
dismissed.
The claim for dependency and indemnity compensation pursuant
to 38 U.S.C.A. § 1151 is granted.
Richard B. Frank
Member, Board of Veterans' Appeal